Recently there have been a number of Victorian Supreme Court
cases involving planning issues, suggesting an increased
willingness, particularly by developers, to escalate planning
litigation to the Supreme Court when faced with an adverse outcome
from the Victorian Civil and Administrative Tribunal or Planning
In a recent case, Dustday Investments Pty Ltd v Minister for
Planning  VSC 101, Dustday sought a Supreme Court
declaration that a panel recommendation and Council resolution to
include Dustday's land in the heritage overlay was affected by
legal error and was therefore invalid.
At the panel hearing, Dustday had submitted a building at its
land was of borderline heritage significance, and given its poor
condition, any reuse option would be very costly. Despite these
costs, the panel still recommended that the overlay be imposed.
In the Supreme Court, Dustday argued that the panel had failed
to properly consider the social and economic effects of the
amendment. Dustday developed its submissions partly on the basis of
recent changes to section 12(2)(c) of the Planning and
Environment Act 1987, which now requires that a planning
authority must take account of social effects and economic effects
(as opposed to may, which was the position before the change).
Garde J was satisfied that the panel gave social and economic
effects careful and comprehensive consideration. He observed that
as Dustday had not made available development plans at the
amendment stage, the panel's consideration of conservation and
heritage matters in a reuse scenario was necessarily
Dustday also argued the panel misdirected itself by allegedly
imposing an arbitrary restriction on when consideration of
demolition was relevant. This argument focussed upon the following
conclusion reached by the planning panel: "...
we do acknowledge that condition may sometimes be relevant in
extreme cases of dilapidation where demolition is an inevitable
outcome. In such circumstances, the case for demolition would have
to be irrefutable and the community-wide costs and benefits of the
demolition versus conservation outcomes would have to be clearly
Dustday argued this conclusion in relation to when condition
might be relevant had no grounding in law or policy. Garde J
rejected Dustday's argument that the panel had imposed an
arbitrary standard, holding that the panel had a very wide
discretion that permitted it to form the conclusion that it
The case highlights how difficult it is to successfully overturn
merit based decisions of panels and tribunals. Nonetheless, the
case provides a good example of potential ways in which a planning
panel decision might be challenged on administrative law
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The Supreme Court at first instance had determined that an adjudication determination could be remitted to the adjudicator for re-determination for non-jurisdictional error.
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